President Donald Trump’s nomination of Judge Neil Gorsuch to the Supreme Court has opened the floodgates of questions of where the Tenth Circuit Judge stands on important issues. One of those is how the judge interprets precedent on the issue of expert witness testimony. A review of some of his recent opinions gives some indication of how he might rule on expert witnesses and their testimony when elevated to the high court.

In StorageCraft Tech. Corp. v. Kirby (10th Cir. Utah 2014), Gorsuch provided practitioners and judges with some evidence of his thoughts on expert witness testimony. In that case, Gorsuch writes that “several lessons emerge from a review of our existing decisions.” He notes that it’s “not sufficient for a district court simply to say on the record that it has decided to admit the expert testimony after due consideration.” Rather, the district court is required to furnish enough of a record to permit a reviewing court to say with confidence that it ‘properly applied the relevant law,’” he explained, citing Tenth Circuit precedent, United States v. Avitia-Guillen (10th Cir. 2012) and United States v. Roach (10th Cir. 2009). Next, Gorsuch noted that the district court “must reply in some meaningful way to the Daubert concerns the objector has raised.” When the reliability of an expert’s methodology is questioned, he found that “it’s not good enough for the district court to stress the expert’s qualifications.” But he cautioned that the district court need not discuss all the reliability factors that the Supreme Court identified in Daubert and Kumho Tire in every case and that the court’s gate-keeping function is flexible with a focus on the specific factors implicated by the circumstances at hand.

Finally, in StorageCraft, Gorsuch said that insufficient gate-keeping findings by a district court may not warrant reversal when the appellee can show it was harmless error. The judge explained that even if the appellate court found the expert testimony was wrongly admitted, presentation of that evidence might still qualify as harmless error “if other competent evidence is ‘sufficiently strong’ to permit the conclusion that the improper evidence had no effect on the decision,” citing Goebel v. Denver & Rio Grande W. R.R. Co. (10th Cir. 2000). A new trial won’t be granted, Gorsuch said, when the right result was reached.

In 2013, Judge Gorsuch held in Dale K. Barker Co., P.C. v. Plaza that if an expert report doesn’t disclose an expert opinion per Rule 26(a)(2)(B)(i), a district court has discretion to prohibit the expert from testifying as an expert. Further, Gorsuch held that even experts who aren’t required to file reports still need to disclose a summary of the facts and opinions to which they are expected to testify pursuant to Rule 26(a)(2)(C)(ii).

In BancFirst v. Ford Motor Co. (10th Cir. Okla. 2012), Gorsuch wrote that “[e]xpert testimony is only admissible, of course, if it is ‘the product of reliable principles and methods’ and ‘appl[ies] the principles and methods reliably to the facts of the case.,’” citing United States v. Nacchio (10th Cir. 2009) (en banc) (quoting Rule 702). Citing Joiner, Judge Gorsuch commented that this reliability determination was the district court’s to make, and the Tenth Circuit would review those conclusions only for abuse of discretion. In other words, the judge stated the appellate court wouldn’t reverse unless it found that the district court “exceeded the bounds of permissible choice in the circumstances” at hand (Nacchio, supra). Those boundaries of the rationally available choices available to a district court, he noted in a 2010 decision, are “well marked” pursuant to Daubert and Federal Rule of Evidence 702. In Graves v. Mazda Motor Corp. (10th Cir. Okla. 2010), Gorsuch opined that the Daubert factors were not meant as a “one-size-fits-all test to be applied rotely to all experts…” Along with its discretion, the district court’s central objective in any Daubert inquiry “is and must be to ensure that any expert ‘employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.’” (citing Kumho Tire). To discharge its Daubert gatekeeping responsibility, Judge Gorsuch wrote that the district court must “take enough steps to confirm that it has ‘assess[ed] the reasoning and methodology underlying the expert’s opinion,’” citing Milne v. USA Cycling (10th Cir. 2009) (quoting United States v. Rodriguez-Felix (10th Cir. 2006)), and determine if it is “scientifically valid and applicable.”

As a fervent originalist like his idol, the late Justice Scalia, Gorsuch will expect district courts to adhere to exact and literal instructions in a Daubert review. This will include: (i) speaking to each Daubert objection raised; (ii) providing the appropriate discussion based on the complexity of the issue; (iii) expert witness testing, scientific literature, and peer-reviewed studies related to his or her opinions in the case; (iv) a sufficient record of the Daubert review rather than only a district court’s “due consideration”; and (v) appropriate discretion in the district court’s gate-keeping function.

From his Tenth Circuit opinions, Gorsuch’s detailed directions for courts on the proper way to conduct a Daubert review and to justify the admission or exclusion of expert testimony show that judges will need to cross their T’s and dot their I’s. And his literal interpretation of Daubert’s reliability factors will require practitioners wanting to admit expert testimony to be certain that their experts have tested their theories appropriately and offered scientific literature, peer-reviewed studies, and empirical data to support their expert opinions.

Gorsuch will begin his confirmation hearing process on March 20.

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